SUPREME COURT OF VIRGINIA Record No. 130934 AMERICAN ...
Transcript of SUPREME COURT OF VIRGINIA Record No. 130934 AMERICAN ...
IN THE
SUPREME COURT OF VIRGINIA AT RICHMOND
Record No. 130934
AMERICAN TRADITION INSTITUTE, ET AL., Petitioner-Appellant,
v.
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA ET AL.,
Respondent-Appellee.
BRIEF AMICI CURIAE OF THE AMERICAN COUNCIL ON EDUCATION, THE AMERICAN ASSOCIATION OF STATE COLLEGES AND UNIVERSITIES, THE ASSOCIATION OF AMERICAN MEDICAL
COLLEGES, THE ASSOCIATION OF AMERICAN UNIVERSITIES, THE ASSOCIATION OF GOVERNING BOARDS OF UNIVERSITIES AND COLLEGES, THE ASSOCIATION OF PUBLIC AND LAND-GRANT UNIVERSITIES, AND THE NATIONAL ACADEMY OF SCIENCES
IN SUPPORT OF RESPONDENT-APPELLEE
Ada Meloy** General Counsel American Council on
Education One Dupont Circle, NW Washington, DC 20036 (202) 939-9300
Jessica L. Ellsworth* (VSB No. 46832) Stephanie J. Gold** Christopher A. Lott** HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 [email protected] *Counsel of record for Amici Curiae **Motion for pro hac vice pending
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................... ii
INTEREST OF AMICI ................................................................................. 1
STATEMENT OF CASE AND FACTS ........................................................ 2
STANDARD OF REVIEW ........................................................................... 6
ARGUMENT ............................................................................................... 6
I. The Circuit Court Correctly Interpreted the Proprietary Exemption Consistent with Academic Freedom Principles ................. 6
A. The proprietary exemption is solidly grounded in academic freedom principles .................................................... 7
B. The proprietary exemption serves vital interests of universities and colleges in Virginia and around the Nation ..................................................................................... 11
C. Appellants’ interpretation of the proprietary exemption would chill academic inquiry and interfere with academic debate ............................................... 15
II. The Circuit Court Correctly Held that FOIA Authorizes Reimbursement of Cost for Review and Redaction .......................... 17
CONCLUSION .......................................................................................... 18
APPENDIX ............................................................................................. A-1
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TABLE OF AUTHORITIES Page
CASES:
Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991) .............................................................. 9
Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (1995) ...................................................... 6
Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 639 S.E.2d 174 (2007) ........................................................ 6
Corr v. Mazur, No. LL-3250-4, 1988 WL 619395 (Va. Cir. Ct. Nov. 22, 1988) ................ 9
Grutter v. Bollinger, 539 U.S. 306 (2003) ............................................................................... 8
Henderson State Univ. v. Spadoni, 848 S.W.2d 951 (Ark. Ct. App. 1993) ..................................................... 9
Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967) ......................................................................... 8, 15
McMillan v. Togus Reg. Office, Dep’t of Veterans Affairs, 294 F. Supp. 2d 305 (E.D.N.Y. 2003), aff’d, 120 F. App’x 849 (2d Cir. 2005) ............................................................. 8
Miller v. Loyola Univ. of New Orleans, 829 So. 2d 1057 (La. Ct. App. 2002) ...................................................... 9
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (Powell, J.) ...................................................... 8, 15
Regents of Univ. of Mich. v. Ewing, 474 U.S. 214 (1985) ............................................................................... 8
Richards of Rockford v. Pac. Gas & Elec. Co., 71 F.R.D. 388 (N.D.Cal.1976) ................................................................ 9
Sweezy v. New Hampshire 354 U.S. 234, 250 (1957) ................................................................. 8, 16
TABLE OF AUTHORITIES – Continued Page
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Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819) ............................................................... 7
Williams v. Texas Tech Univ. Health Sci. Ctr., 6 F.3d 290 (5th Cir. 1993) ...................................................................... 9
STATUTES:
51 Okla. Stat. § 24A.19 ............................................................................. 10
Neb. Rev. Stat. § 84-712.05(3) ................................................................. 10
S.C. Code 1976 § 30-4-40(a)(14)(A) ........................................................... 9
Va. Code §§ 2.2-3700 through 2.2-3714 ..................................................... 2
Va. Code § 2.2-3705.1(1) ........................................................................... 4
Va. Code § 2.2-3705.4(1) ........................................................................... 4
Va. Code § 2.2-3805.4(4) ................................................................... 2, 4, 6
RULES:
Va. S. Ct. R. 5:30 ........................................................................................ 2
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. I.......................................................................... passim
OTHER AUTHORITIES:
National Institutes of Health, Guidelines for the Conduct of Research in the Intramural Research Program at NIH (4th ed., May 2007) .......... 10
National Science Foundation, Conflict-of-Interests and Confidentiality Statement for NSF Panelists (Feb. 2004) ............................................. 10
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INTEREST OF AMICI
Amici are seven associations of colleges, universities, educators,
trustees, scientists, researchers, and other representatives of higher
education in the United States. Amici represent public, independent, large,
small, urban, rural, denominational, non-denominational, graduate, and
undergraduate institutions and faculty. American higher education
institutions enroll over 20 million students. For decades amici have worked
to foster and promote academic freedom as vital to our Nation’s higher
education institutions.
Amicus American Council on Education (“ACE”) represents all higher
education sectors. Its approximately 1,800 members include a substantial
majority of United States colleges and universities. Founded in 1918, ACE
seeks to foster high standards in higher education, believing a strong
higher education system to be the cornerstone of a democratic society.
ACE regularly contributes amicus briefs on issues of importance to the
education sector. Academic freedom, which is at the core of American
higher education, is a basic concern of ACE and its members.
In addition to ACE, amici curiae include the American Association of
State Colleges and Universities, the Association of American Medical
Colleges, the Association of American Universities, the Association of
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Governing Boards of Universities and Colleges, the Association of Public
and Land-grant Universities, and the National Academy of Sciences. Each
of these amicus curiae and their deeply held commitment to protecting
academic freedom are detailed in the Appendix to this brief.
The Virginia Freedom of Information Act’s proprietary exemption (Va.
Code § 2.2-3805.4(4)) is grounded in concepts of academic freedom and
the protection of research. For centuries, these concepts have made it
possible for the universities and colleges that amici represent to engage in
the research, science, and innovation that benefits the Commonwealth and
the Nation. Because the proprietary exemption safeguards academic
freedom and research, amici urge the Court to affirm the circuit court’s
decision.1
STATEMENT OF CASE AND FACTS
On January 6, 2011, the American Tradition Institute (“ATI”) and
Delegate Robert Marshall (“Marshall”) filed a records request (the
“Request”) with the University of Virginia (“UVA” or “University”) under the
Virginia Freedom of Information Act, Va. Code §§ 2.2-3700 through 2.2-
1 Pursuant to this Court’s Rule 5:30, counsel for all parties have provided written consent to the filing of this amicus brief. The written consents are included as attachment A to this brief.
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3714 (“Act” or “FOIA”). Joint Appendix (“JA”) at 22. The eleven-page
Request broadly sought all materials that Professor Michael Mann, a
climate scientist and former UVA professor, had produced and/or received
while he was employed at the University.
From January to March 2011, UVA worked with ATI and Marshall to
clarify the Request’s scope and to reach an accord on reimbursement of
costs associated with the Request, which UVA estimated would be $8,500.
On March 16, 2011, after the parties reached certain agreements on scope
and reimbursement, UVA commenced to gather responsive documents. JA
at 33-59.
On May 16, 2011, ATI and Marshall filed a Verified Petition for
Mandamus and Injunctive Relief against UVA in Prince William Circuit
Court (the “Petition”). JA at 1. The Petition sought the same records as the
Request.
The next day, May 17, 2011, UVA produced to ATI and Marshall the
first installment of documents responsive to the Request. On August 22,
2011, UVA produced the second and final installment of responsive
documents.
UVA omitted from its productions certain records on the ground that
they were not subject to FOIA disclosure requirements. Most of those
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documents were communications to and from Dr. Mann relating to research
that had not been released or published. UVA asserted that FOIA exempts
such communications from disclosure under a provision referred to as the
“proprietary exemption”. The proprietary exemption applies to the following
records:
Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions’ financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.
Va. Code § 2.2-3805.4(4). UVA also withheld certain documents on the
grounds that such documents were not public records or fell under the Act’s
exemptions for “scholastic records” (§ 2.2-3705.4(1)) or “personnel records”
(§ 2.2-3705.1(1)).
The proceedings below focused on the records that UVA did not
produce because they were either exempt from or not subject to the Act.
Based on review of 31 exemplar documents that the parties selected and
presented to the court, the circuit court judge held in an order dated April 2,
2013 that UVA had properly withheld the challenged records under FOIA.
JA at 670-75.
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The circuit court’s analysis focused primarily on the proprietary
exemption.2 The court interpreted “proprietary” to mean “a thing or
property owned or in the possession of one who manages and controls
them, in this case, the University,” and it concluded that “the overwhelming
majority [of the exemplars] contain data, records or information of a
proprietary nature collected by or for the University faculty or staff in the
conduct of or as a result of research.” JA at 671, 673 (Order ¶¶ 4, 7).
Although the court found it unnecessary to address directly the parties’
academic freedom and First Amendment arguments, the court explained
that the proprietary exemption “arise[s] from the concept of academic
freedom and from the interest in protecting research.” Id. at 673 (Order
¶ 9). As the court explained, “early research is protected for a variety of
reasons. The concept of the churn of intellectual debate, evolving
research, suddenly going up a dead end in your paths of inquiry, having the
ability to come back, all this is part of the intellectual ferment that is
protected” by the proprietary exemption. Id. That decision was correct and
should be affirmed.
2 The court also found that some exemplars were not public records or were exempt from disclosure under the Act’s scholastic- or personnel-records exemptions.
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In a second ruling on appeal to this Court, the circuit court held that
FOIA authorizes reimbursement of costs related to a public agency’s
response to a public records request. JA at 106-110. The court’s decision,
which relied in part on an Advisory Opinion of the Virginia Freedom of
Information Advisory Council,3 was also correct and should be affirmed.
STANDARD OF REVIEW
“[A]n issue of statutory interpretation is a pure question of law which
[the Court] review[s] de novo.” Conyers v. Martial Arts World of Richmond,
Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). This Court presumes
that the circuit court applied the law correctly to the facts before it. The
circuit court’s application of the law to the facts should be viewed in the
light most favorable to the prevailing party below—here, UVA. Bottoms v.
Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995) (citation omitted).
ARGUMENT
I. The Circuit Court Correctly Interpreted the Proprietary Exemption Consistent with Academic Freedom Principles
The circuit court interpreted the proprietary exemption—consistent
with the statute’s plain language—to protect research that has not been
“released, published, copyrighted or patented.” Va. Code § 2.2-3805.4(4).
3 The Advisory Opinion is available at http://foiacouncil.dls.virginia.gov/ops/07/AO_02_07.htm/.
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Appellee’s brief thoroughly details how the statute’s plain language and
purpose support the circuit court’s holding. Amici submit this brief to
address a separate but related point counseling in favor of affirmance: The
circuit court’s interpretation is grounded in longstanding and settled
principles of academic freedom, is consistent with the First Amendment of
the U.S. Constitution, and promotes important interests of Virginia public
universities, Virginia citizenry, and the Nation.
A. The proprietary exemption is solidly grounded in academic freedom principles.
As the circuit court recognized, the proprietary exemption “arise[s]
from the concept of academic freedom and from the interest in protecting
research.” JA at 673 (Order ¶ 9). Academic freedom and research
protection have a well-established, storied place in our Nation’s history and
jurisprudence. Indeed, they serve vital interests essential to our democracy
and constitutional tradition.
Beginning with Chief Justice Marshall’s opinion in Trustees of
Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), the U.S.
Supreme Court has accepted the intellectual independence of American
colleges and universities as a feature of its constitutional jurisprudence.
The U.S. Supreme Court has recognized that academic freedom is a
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cherished right in our society and protected by the First Amendment of the
U.S. Constitution. For example, in Sweezy v. New Hampshire, the U.S.
Supreme Court explained that “[t]he essentiality of freedom in the
community of American universities is almost self-evident.” 354 U.S. 234,
250 (1957). The reason for this is simple: To “impos[e] any strait jacket
upon the intellectual leaders in our colleges and universities would imperil
the future of our Nation,” because “[s]cholarship cannot flourish in an
atmosphere of suspicion and distrust.” Id.; see also Grutter v. Bollinger,
539 U.S. 306, 307 (2003) (“[A]cademic freedom . . . ‘long has been viewed
as a special concern of the First Amendment.’”) (quoting Regents of Univ.
of Cal. v. Bakke, 438 U.S. 265, 314 (1978) (Powell, J.)); Regents of Univ. of
Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985); Keyishian v. Board of
Regents of Univ. of State of N.Y., 385 U.S. 589, 603 (1967).
Lower federal courts and state appellate courts nationwide have
repeatedly affirmed this principle. See, e.g., McMillan v. Togus Reg. Office,
Dep’t of Veterans Affairs, 294 F. Supp. 2d 305, 318 (E.D.N.Y. 2003), aff’d,
120 F. App’x 849 (2d Cir. 2005) (“[S]ociety has a profound interest in the
research of its scholars, work which has the unique potential to facilitate
change through knowledge. . . . Compelled disclosure of confidential
information would without question severely stifle research into questions of
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public policy, the very subjects in which the public interest is greatest.”)
(quoting Richards of Rockford v. Pac. Gas & Elec. Co., 71 F.R.D. 388, 390
(N.D.Cal.1976)); Williams v. Texas Tech Univ. Health Sci. Ctr., 6 F.3d 290,
293 (5th Cir. 1993) (“A state university has a significant interest in having
reasonable discretion to administer its educational programs.”); Bishop v.
Aronov, 926 F.2d 1066, 1075 (11th Cir. 1991) (“Federal judges should not
be ersatz deans or educators.”); Henderson State Univ. v. Spadoni, 848
S.W.2d 951, 953 (Ark. Ct. App. 1993) (“There is a general policy against
intervention by the courts in matters best left to school authorities.”); Miller
v. Loyola Univ. of New Orleans, 829 So. 2d 1057, 1061 (La. Ct. App. 2002)
(“Universities must be allowed the flexibility to manage themselves.”); Corr
v. Mazur, No. LL-3250-4, 1988 WL 619395, at *2 (Va. Cir. Ct. Nov. 22,
1988) (describing academic freedom as “basic to our society”).
Academic freedom is embedded in the fabric of our social and
political structures. Numerous state public records laws reflect such values
through protections for research and study. As one example, the
exemption under South Carolina law is nearly identical to Virginia’s
proprietary exemption. See S.C. Code 1976 § 30-4-40(a)(14)(A).
Similarly, Oklahoma law provides in part that “a public body may keep
confidential: 1. [a]ny information related to research, the disclosure of which
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could affect the conduct or outcome of the research . . . .” 51 OKLA. STAT. §
24A.19. And as a third example, Nebraska law protects “[t]rade secrets,
academic and scientific research work which is in progress and
unpublished”. See, e.g., NEB. REV. STAT. § 84-712.05(3).
The same protections for academic research are embodied at the
federal level too. Respect for confidentiality in the research process
permeates policies and practices of federal agencies that fund and manage
scientific research. For instance, the National Institutes of Health (“NIH”)
instructs peer reviewers that “[a]ll material under review is privileged
information” that “should not be shared with anyone unless necessary to
the review process” and “should not be copied and retained or used in any
manner by the reviewer” absent consent to do so. NIH, Guidelines for the
Conduct of Research in the Intramural Research Program at NIH 13 (4th
ed., May 2007) (emphasis added), available at
http://sourcebook.od.nih.gov/ethic-conduct/Conduct%20Research%206-11-
07.pdf. Likewise, the National Science Foundation (“NSF”) requires
reviewers to “Maintain the Confidentiality of Proposals and Applicants”.
NSF, Conflict-of-Interests and Confidentiality Statement for NSF Panelists
(Feb. 2004) (“The Foundation receives proposals in confidence and
protects the confidentiality of their contents. For this reason, you must not
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copy, quote, or otherwise use or disclose to anyone, including your
graduate students or post-doctoral or research associates, any material
from any proposal you are asked to review.”), available at
http://www.nsf.gov/pubs/2002/form1230p/form1230p.pdf.
B. The proprietary exemption serves vital interests of universities and colleges in Virginia and around the Nation.
Because Virginia’s proprietary exemption is in step with this country’s
venerable respect for the independence of academic research, teaching,
and study, it furthers numerous interests vital to universities and colleges in
Virginia and across the Nation.
The proprietary exemption provides crucial support for the
collaborative research process. Science and innovation depend on the free
flow of ideas. In today’s world, scientific research involves collaborations
among individuals from many different institutions who contribute different
viewpoints, experiences, and expertise. As ACE President Molly Broad
explained, the research process is held together by an expectation that the
exchange of ideas will be confidential and protected from disclosure: “Any
trepidation that the uninhibited and free exchange of ideas will be subject to
intrusion at the behest of litigants would tend to dampen scholars’
willingness to participate in the process . . . . Such a result is bound to
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have adverse consequences for the quality, productivity, and utility of
research that are the hallmarks of American higher education.” JA at 470
(Declaration of Molly Corbett Broad (“Broad Declaration”) ¶ 4); see also id.
at 461 (Affidavit of John L. Gittleman, Dean of University of Georgia Odum
School of Ecology and Genetics ¶ 7) (“[I]f there were a breach of any
protection of the communication among scientists, particularly at the
formative stages of this process, then the freedom and creativity that lie at
the heart of the scientific give-and-take would be hampered and create an
air of paranoia, very possibly eliminating the benefits of collaboration.”). By
shielding confidential research communications from public disclosure, the
proprietary exemption promotes the free exchange of ideas—and thus the
innovation, debate, consideration, and advancement that inexorably result.
The proprietary exemption promotes collaboration among faculty at
Virginia public universities and faculty at private and other public institutions
outside Virginia and the United States. Research at private colleges and
universities and at many public universities is not subject to public
disclosure laws. If the proprietary exemption were interpreted to require
disclosure of confidential research communications, fear of public
disclosure would discourage faculty at those institutions to engage in joint
research efforts with faculty from Virginia public institutions, again
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threatening the benefits that flow from research and collaboration. See,
e.g., JA at 470-71 (Broad Declaration ¶ 6) (“[C]ollaboration and deliberation
between researchers at public institutions and private or international
institutions—which are not subject to state FOIA laws—will be adversely
affected if those laws are interpreted to lack protections for informal and
unpublished scholarly and scientific exchanges.”).
The proprietary exemption also helps ensure that Virginia’s public
universities remain competitive in their efforts to recruit and retain
outstanding faculty. John Simon, UVA Provost and former Vice Provost at
Duke University, explained: “I can state unequivocally that recruitment of
faculty to an institution like the University of Virginia will be deeply harmed
if such faculty must fear that their unpublished communications . . . are
subject to involuntary public disclosure. We will also lose key faculty to
recruitments from other institutions – such as Duke . . . .” JA at 448-49
(Affidavit of John Simon (“Simon Affidavit”) ¶¶ 21, 22). Without the
exemption’s protection for research, Virginia public institutions would be at
a competitive disadvantage relative to peer private institutions as well as
relative to peer public institutions in other states that provide strong
safeguards for research.
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Finally, the proprietary exemption provides economic benefits to
Virginia’s public universities and citizenry. In particular, the proprietary
exemption is integral to the patent process. Id. at 446-47 (Simon Affidavit ¶
14) (“Disclosure of research data and communications that a scientist or
scientific collaborative group has chosen to not yet make public can imperil
future patenting of research.”). It ensures that public universities are able
to license their intellectual property. Id. 447 (Simon Affidavit ¶ 15) (“It is
virtually impossible for a university to license intellectual property to a
private sector company if the data or research results have been
prematurely released and are already publically available.”). And it
facilitates the publication and dissemination of research. Id. at 445 (Simon
Affidavit ¶ 11) (“Scholarly reputations are built on the formal publications,
grants, or public presentations submitted voluntarily and intentionally by
scientists. . . . Loss of the ability to decide when to publish would translate
into risk-adverse research decisions and a loss of bold and creative
exploration.”). Without the proprietary exemption, the Virginia citizenry
would not benefit as fully from the many economic benefits flowing from
public universities in the Commonwealth.
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C. Appellants’ interpretation of the proprietary exemption would chill academic inquiry and interfere with academic debate.
The proprietary exemption serves core First Amendment interests.
Academic freedom is a “special” First Amendment concern. Bakke, 438
U.S. at 312. Infringement of academic freedom entails “[a] chilling effect
upon the exercise of vital First Amendment rights.” Keyishian, 385 U.S. at
604. Through maintenance of confidentiality in the research process, the
proprietary exemption encourages the free flow of ideas that the First
Amendment protects.
ATI and Marshall argue that the proprietary exemption applies only
when the disclosure of records would be “harmful to the competitive
position” of a Virginia public university. Petition for Review at 15. This
proposed interpretation has no basis in the statutory language or its
purpose. Not only does it track a rejected legislative proposal rather than
the enacted statute,4 but in addition, accepting it would choke academic
4 As UVA points out, Appellants’ interpretation is contrary to the legislative history of the proprietary exemption. The statutory language that evolved to become the current statutory text was introduced on January 22, 1982 as part of Senate Bill No. 162. The original proposed language, which was rejected, closely resembles Appellants’ interpretation: “Data or records, other than financial or administrative, having proprietary value, produced or collected by faculty or staff of state institutions of higher education in the conduct of scientific, technical, medical or scholarly
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speech for the reasons explained above by Broad, Simon, and Gittleman.
See, e.g., supra Sec. I.B.
Without clear protection of their academic speech, researchers will be
deterred from robust participation in the exchange of ideas essential for
collaboration and innovation. They may think twice before they propose to
colleagues new and innovative ideas—ideas that require critique of, and
input from, others to germinate into discovery and advancement. They
may not delve into a controversial area of research out of fear that their
every communication will be subject to scrutiny before the research has
been developed. In other words, as Justice Frankfurter explained, ATI and
Marshall’s interpretation would “check the ardor and fearlessness of
scholars, qualities at once so fragile and so indispensable for fruitful
academic labor” and therefore run afoul of the First Amendment. Sweezy,
354 U.S. at 262 (Frankfurter, J., concurring).
activities the results of which have not been released, published, copyrighted or patented, when the disclosure of such data or records may result in a substantial loss to the individual or institution.” Id. (emphasis added). The Legislature ultimately rejected such formulation and enacted the current exemption.
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II. The Circuit Court Correctly Held that FOIA Authorizes Reimbursement of Cost for Review and Redaction
The circuit court held that FOIA authorized UVA to obtain
reimbursement of the costs the University would incur to review and redact
the multitude of documents responsive to ATI and Marshall’s FOIA request.
For the reasons explained by UVA, that interpretation is correct and should
be affirmed. Such holding also appropriately balances the public’s
important interest in transparency and accountability with the practical
reality that public records requests and related response obligations place
significant financial and administrative burdens on Virginia public
universities.
Public universities in Virginia, like universities across the country,
have limited resources to fulfill their educational missions. Reimbursement
ensures that precious resources are not unduly siphoned from an
institution’s core functions of education and research to administrative
tasks such as culling and redacting documents. Those administrative tasks
are appropriate in the interest of transparency where FOIA mandates
disclosure, but so is reasonable reimbursement, which recognizes the
significant effort entailed in responding to a far-reaching, multi-year FOIA
request.
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Reimbursement also serves an important winnowing function. It
encourages requestors to tailor public records requests to the specific
information needed or desired. Though FOIA does not prohibit the type of
broad requests that ATI and Marshall submitted in this case,
reimbursement ensures that FOIA is a shared responsibility between the
requester and the responder and that the burden of response does not fall
solely on Virginia public universities.
CONCLUSION
For the foregoing reasons, this Court should affirm the Circuit Court’s
decision.
Date: December 13, 2013 Respectfully submitted,
_____________________________
Ada Meloy** General Counsel American Council on
Education One Dupont Circle, NW Washington, DC 20036 (202) 939-9300
Jessica L. Ellsworth* (VSB No. 46832) Stephanie J. Gold** Christopher A. Lott** HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 [email protected] *Counsel of record for Amici Curiae **Motion for pro hac vice pending
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APPENDIX: OTHER AMICI ON THIS BRIEF The American Association of State Colleges and Universities
(“AASCU”) includes as members more than 400 public colleges,
universities, and systems whose members share a learning- and teaching-
centered culture, a historic commitment to underserved student
populations, and a dedication to research and creativity that advances their
regions’ economic progress and cultural development. AASCU members
hold free inquiry, an essential component of academic freedom, as a
fundamental value that governs their operations. Academic freedom is the
principle that ensures scientific and intellectual integrity.
The Association of American Medical Colleges (“AAMC”) represents
all 141 accredited U.S. and 17 accredited Canadian medical schools;
nearly 400 major teaching hospitals and health systems; and 90 academic
and scientific societies. Through these institutions and organizations, the
AAMC represents 128,000 faculty members, 75,000 medical students, and
110,000 resident physicians. The AAMC is committed to the continuing
improvement of health care and the continuing medical education of
physician practitioners based on sound scientific evidence. These goals
require, and AAMC strongly supports, policies that promote unfettered
generation and dissemination of new, validated scientific knowledge, while
A-2
safeguarding the confidentiality, privacy, and proprietary information of
patients, physicians, and scientists who participate in research. Academic
freedom is the cornerstone of such policies.
The Association of American Universities (“AAU”) is an association of
61 leading public and private research universities in the United States and
Canada. Founded to advance the international standing of U.S. research
universities, AAU today focuses on issues that are important to research-
intensive universities, such as funding for research, research policy issues,
and graduate and undergraduate education. AAU believes that academic
freedom is the freedom of university faculty to produce and disseminate
knowledge through research, teaching, and service, without undue
constraint.
The Association of Governing Boards of Universities and Colleges
(“AGB”) serves the interests and needs of academic governing boards,
boards of institutionally related foundations, and campus CEOs and other
senior-level campus administrators on issues related to higher education
governance and leadership. Its mission is to strengthen, protect, and
advocate on behalf of citizen trusteeship that supports and advances
higher education. Governing board accountability includes the protection of
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higher education’s central value of academic freedom. Academic freedom
lies at the heart of our mission.
The Association of Public and Land-grant Universities (“APLU”) is
a research and advocacy organization of public research universities, land-
grant institutions, and state university systems with member campuses in
all 50 states, U.S. territories, and the District of Columbia. APLU members
hold free inquiry, an essential component of academic freedom, as a
fundamental value that governs their operations. Academic freedom is the
principle that ensures scientific and intellectual integrity.
The National Academy of Sciences (“NAS”) is a private nonprofit
membership corporation created by an Act of Congress in 1863 to elevate
American science, to recognize distinguished advances in research, and to
advise the government on any matter for which science, engineering and
medicine can improve the public good [see 36 U.S.C. § 150303]. The NAS
is not an agency of the federal government nor does it receive a
Congressional appropriation. As the preeminent American scientific
society, the NAS has approximately 2,500 members, all of whom have
been elected for their distinguished achievements in scientific research.
The NAS fulfills its mission of advising the U.S. Government through
hundreds of projects supported by federal agencies. It also carries out
A-4
projects for state governments, foundations, and private entities. Every
year more than 7,000 NAS members and other experts work on these
projects as volunteers and without compensation. Many are faculty
members and researchers in state institutions throughout the Nation.
Because of its mission, the NAS has a strong interest in supporting the
academic freedom that is necessary to pursue scientific research, advance
new knowledge, and improve the human condition.
CERTIFICATE OF SERVICE AND COMPLIANCE
I hereby certify that on this 13th day of December, 2013, three printed
copies of the foregoing were served by U.S. Postal Service Priority Mail on:
David W. Schnare 9033 Brook Ford Road Burke, VA 22015 Counsel for Appellants the American Tradition Institute Et Al. Richard Kast P.O. Box 400225 1827 University Ave. Charlottesville, VA 22904-4225 Counsel for Appellee The Rectors and Visitors of the University of Virginia Peter Fontaine 457 Haddofield Road, Suite 300 P.O. Box 5459 Cherry Hill, NJ 08002 Counsel for Appellee Robert Mann Robert G. Scott, Jr. Davis Wright Tremaine, LLP 1919 Pennsylvania Avenue NW, Suite 800 Washington. D.C. 20006 Counsel for Amici Curiae The Reporters Committee for Freedom of the Press et al.
I further certify that I have caused to be filed 15 printed copies of the
foregoing with the Clerk of this Court and I have filed an electronic PDF
copy of the foregoing with the Clerk via e-mail to
[email protected]. I also certify that the foregoing brief does not
exceed 50 pages and that I have otherwise complied with Rules 5:26 and
5:30 of the Rules of the Supreme Court of Virginia.
____________________________
Jessica L. Ellsworth (VSB No. 46832)